I-94 expired H4 Valid AOS Filed Can still Use H4 to reenter

C

ceeku

Registered Users (C)
April 2007
Me & My wife had 3 Yr visa At Chennai Consulate which ends at April 2010.
For My Wife due to passport validity issue, I-94 is given upto Jan 2008 Only. Asked to extend I-94 after Passport is extended.My 1-94 is given untill April 2010

June 2007
Applied for I-485 AOS in June 13, 2007.
Got Ap, EAD in Octomber 2007
Extended Ap, EAD in July 2008
Applied for AP extension in April 2009- Pending

I Stayed with same company and never have to use EAD. I stayed on H1-B.
Wife I-94 is not extended as we have AOS.

Since Current AP ends in July and new one is still pending, Can my wife leave country and return in August on H4[Current AP expires Junly 10]. Can she still use H4 visa? Since 1-94 is expired and she is on AOS stay, she has to use AP only

I am also planning to go and use my H1 status to return. Please advise
 
Last edited by a moderator:
In the situation you described above, yes, your wife can use her H-4 visa to apply for readmission to the US without abandoning her I-485. This is true as long as you are in H-1B status yourself.
 
Thanks for response. I am still usind same H1B and never used EAD. I am only worried that Immigration might see a problem as

"Once your I-94 is expired, you are on AOS. IF you are in AOS, you have to use AP to enter. You cannot switch back to H4. that might make her stay from 1-94 expiry as unlawful presence"
 
Appearing at a US port of entry with a valid visa is always considered as applying for admission into the US. This is true every time. Your wife has no US status once she leaves the US, AOS or otherwise. To have a status in the US, you must be physically present in the US. Now consider the following facts:

1- USCIS allows AOS applicants to leave the US and return using H or L visas. Doing so will enable them, in the words of USCIS, to resume their adjustment of status applications without them being deemed abandoned. Note the word "resume" because, again, an alien has no US status outside the US (obviously), but if they reenter with an H visa (like your wife will), USCIS will not consider her AOS application to have been abandoned.

2- Your wife would not be "switching back" to H4 as you write, she is applying for new admission under H-4 status after being away from the US where she had no US immigration status. She has no accumulated days of unlawful presence, even after her I-94 expired, because her I-485 was properly filed and pending. Thus, absent any other pertinent information, your wife is not inadmissible to the US.

I know this is all technical jargon but I hope it is clear.
 
Last edited by a moderator:
Thanks for the response

That makes sense. But my company lawyer is saying He H4 visa is invalid after I-94 expiry. She is on AOS and Can go Out/Come back only with AP.

He might be wrong. Because if i go and get her along me. She would join me as H4 because i am on valid H1-B With I-94.

How do you knwop for sure. Can this be discussed in InfoPass Appointment? will it help me
 
The lawyer may be right (generally speaking) if the H-1B dropped out of status. But not the H-4 (as long as the H-1B remains in status).

If her H-4 visa is valid (it is, right?), then there is nothing to worry about. I don't know if infopass would help you (it's not the kind of stuff they usually deal with) but if I were you I would ask another competent lawyer if for whatever reason you still feel uneasy. Alternatively, visit the I-485 general board here and ask how many people have been in your wife's situation, I'm sure you'll get replies of people who have traveled with no problems. But the best thing is probably speak to a competent lawyer, unlike your company lawyer.

Another example is the last question in this FAQ about regaining H-4 status after losing it. The answer specifically indicates that traveling abroad and reentering with an H-4 visa reinstates that status.
 
Last edited by a moderator:
Link was helpful

Actually last question was much similar to my case. wife is on H4 Changed to EAD but eligible to come back as H4 as along as Husband is in Same H1.

My wife did not go on EAD at all only thing her i-94 expired but has lawful presence due to AOS.

More i think your argument makes correct.
 
You must log in or register to reply here.
Top